Exhibit 10.30 - CNAVE Cooperation Agreement
COOPERATION AGREEMENT BETWEEN
THE NATIONAL CENTER FOR AUDIO AND VISUAL EDUCATION
AND BEIJING JIADE TENGTU SCIENCE AND TECHNOLOGY GROUP COMPANIES
CHAPTER 1 PREFACE
ARTICLE 1
In order to promote the IT-based education in the primary and middle
schools and speed up the realization of the goal of the IT-based education set
forth by the Ministry of Education, the National Center for Audio and Visual
Education (NCA/VE) and Beijing Jiade Tengtu Science and Technology Group
Companies Limited shall make joint investment in the establishment of Beijing
Oriental Education Resources Co., Ltd. (provisional name) in accordance with the
"Law of the People's Republic of China on the Establishment of Company" (Company
Law) and other related laws and regulations. The agreement is hereby formulated.
CHAPTER 2 DEFINITION
ARTICLE 2
THE TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS AS HEREIN SHOWN EXCEPT
WHERE THE CHINESE LAWS OR THIS AGREEMENT OTHERWISE SPECIFIES:
1. "Chinese laws", "Relevant Chinese laws" and "Other relevant Chinese
laws" mean all the laws, administrative laws and regulations, local laws
and regulations, rules and regulations of the state organs and local
governments issued in the People's Republic of China through legal
procedures. The internal regulations formulated by the state organs or
local governments are not included.
2. "The government requirements" mean the administrative regulations,
orders and other mandatory provisions, which have a universal binding
force, issued publicly by the government of the People's Republic of
China or by the government competent authorities.
3. "Parties of the agreement", "Persons concerned" mean the persons from
Party A and Party B who have signed the agreement.
CHAPTER 3 ESTABLISHMENT OF COMPANY
ARTICLE 3
Legal addresses and legal representatives of the parties of the agreement:
Party A: The National Center for Audio and Visual Education
Legal address: 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx
Legal representative: Xxxx Xxxxxxx
Party B: Beijing Jiade Tengtu Science and Technology Group Companies
Legal address: North square, West Railway Station, Fengtai District, Beijing
Legal representative: Zhang Fanqi
ARTICLE 4
Parties of the agreement agree that the provisional name of the company is
Beijing Oriental Education Resources Co., Ltd. (subject to the approval by the
relevant administration for industry and commerce).
ARTICLE 5
Legal address of the company is: Xxxxxxxx Xx., 00 Xxxxxxx Xxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
CHAPTER 4 TOTAL AMOUNT OF INVESTMENT
AND THE REGISTERED CAPITAL
ARTICLE 6
The total amount of investment is not less than XXX 00 xxxxxxx Xxxx.
ARTICLE 7
Party A and Party B shall contribute RMB 30 million Yuan (currency) for the
registered capital of the company.
ARTICLE 8
Both parties shall make contributions as follows:
1. Party B shall contribute RMB 21 million Yuan (currency), which is
accounted for 70% of the registered capital; while Party A shall
contribute RMB 9 million Yuan (currency), which is accounted for 30% of
the registered capital.
2. Both parties agree that Party B shall make an additional investment of XXX
00 million Yuan within 12 months after the establishment of the company,
and will further make an additional investment of XXX 00 million Yuan
within 18 months after the establishment of the company to make the total
amount of investment reach XXX 00 million. Party A shall make an
additional investment in the form of the teaching resources and other
intangible assets.
3. Both parties agree that two years (inclusive of the second year) after the
establishment date of the company, Party B shall donate 17% of the total
share ownership to Party A. Then the ratio of the share ownership will
become 47% for Party A, and 53% for Party B. As for the aforesaid change,
the company shall go through the change formalities in accordance with
law. (Refer to the stock transfer agreement for detail).
4. All the investments made by the two parties shall not be withdrawn during
the term of the joint venture.
ARTICLE 9
1. The company is a liability limited company. Party A and Party B shall take
the responsibilities for the company in accordance with their
contributions. The company shall take the responsibility for any debts
with its all assets.
2. Both parties agree that profits will be shared according to the ratio of
47% for Party A and 53% for Party B.
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ARTICLE 10
The persons concerned shall complete their own contributions in accordance with
the regulations specified in the "Company Law" and this agreement during the
registration period of the company.
ARTICLE 11
The persons concerned hereby guarantee that they have complete ownership or
right of use of the material objects or intangible assets and etc they have
provided.
ARTICLE 12
The persons concerned hereby guarantee that they have not set hypothec and right
of use on the material objects they have provided, and not set hypothec on the
intangible assets, and meanwhile they are not allowed to set the aforesaid
rights.
ARTICLE 13
After the full payment of investment by the persons concerned to the company,
the company shall invite a Chinese certified accountant office to verify it, who
shall provide a report for the contributed investment after the verification.
Within thirty days after receiving the verification report, the company shall
issue "investment certificates" signed by the Chairman of Board to the persons
concerned. There should be name, establishment date of the company, names of the
concerned persons who have made contributions, date and amount of the
contributions and signature date written on the "investment certificates".
ARTICLE 14
Before the Board of the Directors determines how to use the funds, the persons
concerned or company shall not draw any funds from the deposit account of the
bank.
ARTICLE 15
Within the term of the joint venture, the company shall not change its
registered capital in principle. However when the relevant laws permit and both
parties unanimously agree, the registered capital can be changed.
ARTICLE 16
If there is any change in the contributions paid to the company, contribution
ratio or party who has made the contributions, the relevant provisions of the
agreement shall be changed accordingly, and go through the relevant formalities.
ARTICLE 17
All the business activities conducted by the company in China should strictly
observe the relevant laws of China. The company shall enjoy rights and undertake
obligations in accordance with the relevant laws of China.
ARTICLE 18
The signature date of the business license shall be the establishing date of the
company.
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ARTICLE 19
1. The company shall have an independent accounting system and autonomous
management. Unless otherwise specified by the relevant laws of China,
the company has the right to expel any interference by the external
factors. And the company also has right to manage and dispose of all the
assets it owns. The company losses shall be borne by the company itself.
2. The basic autonomy owned by the company includes the following contents:
a) To purchase and acquire all assets required by the company from home
and abroad, and allocate, manage and dispose of them;
b) To determine and implement the business operation plans of the
company;
c) To negotiate prices of the technical know-how required by the
company, and to purchase or import the technical know-how from home
and abroad;
d) To recruit, train, transfer, promote, punish and fire the employees
of the company, and to exercise other necessary management on them;
e) To decide its service prices and provide services both at home and
abroad in accordance with this agreement and other legal documents
related to the agreement;
f) To raise funds required by the company's business operation in
accordance with the relevant laws of China;
g) To formulate, revise, abolish and implement the company's rules and
regulations;
h) All other autonomy required by the company's business operation.
ARTICLE 20
Required by the business development and permitted by the relevant laws of
China, the company may establish, change or rescind its subsidiaries, branch
companies, representative offices or its agency.
ARTICLE 21
1. The debts, claims and compensation request and other losses caused by the
persons concerned before the founding of the company shall be handled by
themselves, the company shall not bear any burden arising therefrom.
2. Unless otherwise specified by laws or this agreement, the creditors and
debts incurred before the founding of the company shall have no relations
with the company.
CHAPTER 5 PURPOSE, BUSINESS SCOPE AND SCALE OF THE COMPANY
ARTICLE 22
The purpose of the company is to construct a fairly large and authoritative
education resources database with high quality and rich contents in China so as
to provide an excellent service to the primary and middle schools and adults
education.
ARTICLE 23
The business scope of the company is to research, develop and produce software
and hardware; to provide education resources service and manage websites;
research and develop information network engineering; to provide technical
advice, technical service and technology transfer.
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ARTICLE 24
The operating term of the company is 20 years, subject to the final approval by
the relevant administration for industry and commerce.
ARTICLE 25
The business scope of the company is subject to the restrictions by the China's
current laws. The company can only carry out its activities within the
restricted scope. When the restrictions are relaxed due to the change in
policies and laws in future, the company shall make great efforts to expand its
business scope.
CHAPTER 6 RIGHTS AND OBLIGATIONS OF THE SHAREHOLDERS
ARTICLE 26
The shareholders have following obligations in accordance with laws:
FOR PARTY A:
1. They shall give full pay to their organizational and administrative
advantages to create basic conditions for the expansion of the company
business in line with the development requirements of the company.
2. They shall not have cooperation with a third party in the same or
similar business area as that of the joint venture company after signing
the agreement. As for the Party A's cooperation with others before
signing this agreement, Party B understands the situation.
3. They shall be responsible for handling other related matters entrusted
by the joint venture company.
FOR PARTY B:
1. They shall apply for approval, make registration and acquire business
license for the company.
2. They shall assist the company to look for the site of the company and
make water, electricity and other necessary articles available to the
site.
3. They shall select competent line managers, administration personnel,
technical personnel and other staff for the company.
4. They shall assist the company to purchase or hire equipment, materials,
stationery, communication equipment and means of transportation, fuel
and transportation facilities.
5. They shall not have cooperation with a third party in the same or
similar business area as that of the joint venture company after signing
the agreement.
6. They shall be responsible for handling other related matters entrusted
by the joint venture company.
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ARTICLE 27
The shareholders shall enjoy following rights in accordance with law:
1. To participate in or select representatives to participate in the board
of shareholders;
2. To decide the business operating principle and investment plan of the
company;
3. To know the business operating conditions and financial status of the
company, and have the right to audit the financial matters of the
company;
4. To elect and replace directors, and decide the directors' remuneration;
5. To elect supervisors from the shareholders' representatives or replace
them, and to decide the supervisors' remuneration;
6. To examine and approve the reports made by the Board of Directors;
7. To examine and approve the reports made by the Board of Supervisors or
by the supervisor;
8. To examine and approve annual financial budget proposal and final
accounts proposal;
9. To examine and approve the profits sharing proposal and proposal for
making up for losses;
10. To get dividend in accordance with laws, regulations, this agreement and
the Articles of Association;
11. To adopt resolutions on the change of the registered capital, and to
have priority to purchase the newly added registered capital;
12. To adopt resolutions on the transfer of contributions from shareholder
to non-shareholders, and to have priority to purchase the contributions
transferred by other shareholders;
13. To adopt resolutions on the merger, separation of the company, change of
the company form, dissolution and liquidation and so on;
14. To formulate and revise the Articles of Association;
15. Other rights
ARTICLE 28
The board of shareholders is composed of all the shareholders, which is the
highest authority of the company. It has the right to decide all major issues of
the company. Resolutions made at the board of shareholders shall be unanimously
adopted by all the shareholders.
ARTICLE 29
The board of shareholders shall exercise the following functions and powers:
1. To determine the business operating principle and investment plan; to
examine and approve the reports by the Board of Directors;
2. To elect or dismiss members of the Board of Directors and decide the
remuneration of directors;
3. To elect supervisors from the shareholders' representatives or replace
them, and to decide the remuneration of the supervisors;
4. To examine and approve the reports made by the board of supervisors or
by any of supervisors;
5. To examine and approve the annual financial budget and final accounts
proposals;
6. To examine and approve the profits sharing proposal and the proposal to
make up for losses;
7. To adopt resolutions on the change of the registered capital;
8. To adopt resolutions on the transfer of the contributions from
shareholders to a third party other then shareholders;
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9. To adopt resolutions on the merger and separation of the company, change
of the company form, dissolution and liquidation and so on;
10. To revise the Articles of Association;
11. Other functions and powers specified by laws and regulations, or the
functions and powers that the board of shareholders deems that it is
necessary for them to exercise.
ARTICLE 30
The first meeting of the board of shareholders shall be called and presided over
by the shareholder who has made the most contributions, and he or she should
exercise its functions and powers in accordance with law.
ARTICLE 31
THE BOARD OF SHAREHOLDERS SHALL HOLD ONE REGULAR MEETING EACH YEAR. THE
SHAREHOLDERS WHO REPRESENT OVER ONE QUARTER OF THE RIGHT TO VOTE, OR THE
DIRECTORS OR COMPANY'S SUPERVISORS WHO REPRESENT OVER ONE THIRD OF THE RIGHT TO
VOTE MAY PROPOSE TO HOLD AN INTERIM MEETING OF THE BOARD OF SHAREHOLDERS. THE
MEETING OF THE BOARD OF SHAREHOLDERS SHALL BE CALLED BY THE BOARD OF DIRECTORS,
AND PRESIDED OVER BY THE CHAIRMAN OF THE BOARD. IF THE CHAIRMAN CAN NOT PERFORM
HIS OR HER FUNCTION AND POWERS BECAUSE OF SPECIAL REASONS, THE CHAIRMAN SHALL
APPOINT A DIRECTOR TO PRESIDE OVER THE MEETING.
A written notice shall be distributed to each shareholder at least fifteen days
before the meeting of the board of shareholders is held. The parties of the
agreement each may recommend one person to attend the meeting. If there is no
special written instruction or written certificate of entrustment, the meeting
of the board of shareholders shall be attended by the directors recommended by
the shareholders.
ARTICLE 33
A written record shall be kept for each board meeting and signed by the
attending shareholders or shareholder's representatives. The board of
shareholders shall adopt a resolution for the issues discussed and agreed at the
meeting. The shareholders who have agreed to this resolution shall sign it. The
resolution has legal effect.
ARTICLE 34
The persons concerned have special regulations for the shareholder's right to
vote and other rights, the persons concerned must act according to the special
regulations.
CHAPTER 7 BOARD OF DIRECTORS
ARTICLE 35
The signature date of the business license shall be the establishment date of
the board of directors.
ARTICLE 36
The board of directors is composed of 8 directors, of which 4 appointed by Party
A and 4 appointed by Party B.
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1. The first chairman of the board shall be designated by Party A. When the
first chairman completes its term of office, a new chairman shall be
recommended by Party A, and then elected by the board of directors in
accordance with the regulations set forth in this agreement.
2. The term of office for directors and chairman is three years, and can be
renewed.
ARTICLE 37
1. The directors appointed by the persons concerned can be dismissed and
replaced at any time. If there is a vacancy for directorship, the party
concerned can appoint a successor at any time.
2. When either party dismisses and replaces a director (including
chairman), or appoints successor directors, the party concerned shall
submit a written notice to the board of directors and the persons
concerned ten days before the replacement or appointment takes place.
3. When the party concerned changes its director (including chairman) in
accordance with section 1, the term of office for the successor director
shall be the remaining period left by the predecessor.
ARTICLE 38
1. The remuneration for the directors and chairman shall be decided by the
board of shareholders.
2. If the posts of general manager or other senior managing personnel are
assumed by the chairman or the directors, they can get remuneration from
the company in the capacity of the general manager or other senior
managing personnel. The amount of remuneration shall be decided by the
board of directors.
ARTICLE 39
1. The chairman of the board shall exercise its functions and powers in
accordance with this agreement, the Articles of Association and the
internal regulations approved by the board of directors or within the
scope especially approved by the board of directors. Any actions
representing the company such as to sign legal documents with the
external organizations in the name of the company shall be approved by
the board of directors. The chairman shall exercise the following
functions and powers:
a. To call and preside over the meetings held by the board of
shareholders and board of directors;
b. To supervise and inspect the implementation of the resolutions
adopted by the board of shareholders and board of directors and the
business operating situations in the company, and report these
matters to the board of directors.
c. To sign relevant documents on behalf of the company;
d. Other functions and powers authorized by the board of shareholders
and board of directors.
2. If the chairman of the board can not perform his or her duties within a
period of one month due to special reasons, the board of directors shall
immediately elect and appoint a substitute from the existing directors
to act on behalf of the chairman
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ARTICLE 40
1. The board of directors is a permanent organ of powers of the company.
2. The board of directors and each director shall carry out activities in
accordance with the Chinese laws and the regulations set forth in this
agreement and Articles of Association.
3. The decisions made by the board of directors shall not be interfered by
any external factors as long as they don't go against the Chinese laws
and regulations set forth in this agreement and Articles of Association.
ARTICLE 41
1. The board of directors shall convene two meetings each year in
principle. The meetings shall be called and presided over by the
chairman.
2. When the person concerned put forward a proposal to dissolve the company
in accordance with the regulations set forth in this agreement, the
chairman shall immediately call an interim meeting of the board of
directors. If the chairman doesn't immediately call the interim meeting,
the person concerned who raised the proposal shall recommend a director
from the directors to act on behalf of the chairman to call the interim
meeting of the board of directors.
3. An interim meeting of the board of directors may be held when over a
third of directors propose. The chairman of the board shall call the
interim meeting within twenty days after receiving the proposal from the
directors. If the chairman doesn't call the meeting within the twenty
days, any one of the directors who have raised the proposal shall call
the interim meeting of the board of directors on behalf of the chairman.
4. In order to promote close relationship among the board of directors,
management mechanism and supervision organ, the general manager, chief
financial controller and supervisors shall attend the meeting of the
board of directors as non-voting members. If the general manager or
chief financial controller is concurrently a director, he or she has the
right to vote at the meeting of the board of directors, otherwise, he or
she has no right to vote. Other personnel can also attend the meeting as
non-voting members as necessary.
ARTICLE 42
1. The board meeting shall be held in principle in the legal address of the
company.
2. The board meeting may be held in the place other than the legal address
of the company. Any resolution required to be adopted by the board may
be adopted without a meeting if all the members of the board entitled to
vote thereon consent in writing to such resolution.
3. The resolution adopted by the written consent mentioned in Section 2
means that all the directors have signed the document that contains the
resolution. The resolution adopted by written consent has the same
effect as that adopted by the board meeting. Once the resolution
contained in the document is adopted, the document shall be kept as the
minutes of the board meeting. The way in which a resolution is adopted
by written consent is also applicable to any regulations required to be
adopted by the board.
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ARTICLE 43
1. The board meeting requires a quorum of over two thirds of the total
number of directors.
2. Should any director is unable to attend the board meeting, he or she can
ask in writing a proxy to attend the meeting and exercise the right to
vote. The proxy must be a director. One proxy can attend the meeting and
exercise the right to vote on behalf of two or more directors. But one
director is not allowed to ask two or more than two proxies to attend
the meeting and exercise the right to vote. The proxy has the same
powers as the director he represents at the board meeting.
3. In case a director neither attends nor asks a proxy to attend the board
meeting, he or she will be regarded as attendance of the meeting and
abstention from voting.
ARTICLE 44
1. All the directors shall be noticed in writing ten days before the date
of the board meeting. However if all the directors agree, less than ten
days is also acceptable.
2. The written notice mentioned above should include the date and place of
the meeting, topics for discussion, proposals and relevant materials
about the proposals. Each director may ask the board chairman to give
explanations to the proposals and their related materials.
ARTICLE 45
Unless otherwise specified by the relevant laws of China, the following items
shall be unanimously agreed by the directors and proxies attending the board
meeting:
1. To put forward the proposals to revise the Articles of Association;
2. To formulate the proposals to terminate or dissolve the company ahead of
time;
3. To formulate the proposals to change the registered capital of the
company;
4. To formulate the proposals to merge the company with other economic
organizations;
5. To determine mortgage, lease and transfer of the important assets of the
company within the scope authorized by the shareholders;
6. To examine the important regulations and internal management structure
of the company, such as regulations and structures with regard to
payment for labor, personnel management and financial management and
etc.
ARTICLE 46
Unless otherwise specified by the relevant laws of China, the following items
shall be unanimously agreed by more than half (exclusive of half) of the
directors and proxies attending the board meeting:
1. To be responsible for calling the meeting of the board of shareholders,
and make report to the meeting;
2. To implement the resolutions adopted by the board of the shareholders;
3. To decide the business operating plan and investment proposal of the
company;
4. To formulate the annual financial budget and final accounts proposal;
5. To formulate profits sharing proposal and proposal to make up for
losses;
6. To draft the proposals to merge the company with other economic
organizations or separate the company, or to change the form of the
company or to dissolve the company;
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7. To appoint or dismiss general manager, and to decide his or her
remuneration;
8. To appoint or dismiss deputy general manager and other senior managing
personnel according to the nomination of the general manager, and decide
their remuneration;
9. To decide loans or guarantees of the company within the scope authorized
by the board of shareholders;
10. To put forward internal and external investment proposals or to adopt
resolutions on the internal and external investment in accordance with
the authorization given by the board of shareholders; to decide to
establish subsidiaries, branch companies, representative offices or
agency;
11. To decide to make off-budget purchases or sell the important fixed
assets;
12. To decide on major contracts to be signed with other organizations;
13. To formulate revision proposal for the Articles of Association;
14. To put forward bankruptcy application with the approval from the board
of shareholders, and to take concrete responsibilities for the
liquidation of the company;
15. To decide on the loans and their quota, capital expenditure, sales,
purchases and strategic alliances and others not covered by the annual
business operating plan;
16. Any other major issues that the board of shareholders has authorized the
board of directors to decide on.
ARTICLE 47
If the board meeting is convened or a resolution passed in violation of this
agreement, the resolution adopted by the meeting shall become null and void. If
a deadlock occurs due to the different opinions at the board meeting, and it is
difficult to adopt a resolution at the meeting, the persons concerned shall make
great efforts to find out a solution through sincere consultations.
ARTICLE 48
Minutes of the board meetings shall be written in the Chinese language. After
signed by the directors and proxies attending the meeting, the minutes shall be
kept by the company until dissolution of the company. Each party shall hold one
copy.
ARTICLE 49
Expenses arising from the board meetings, including the travelling and
accommodation expenses of the directors attending the meetings, shall be borne
by the company.
ARTICLE 50
If any one of the directors recommended by the persons concerned is found to be
incompetent, or have engaged in malpractice for self ends, neglected his or her
duty or have committed serious mistakes or have other misconduct, he or she must
be dismissed and replaced by the person concerned.
ARTICLE 51
If any of the directors has incurred a loss to the company due his or her fault,
he or she shall compensate company for the loss.
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ARTICLE 52
The directors can only exercise their powers in the company through voting at
the board meeting. They are not allowed to do anything on behalf of the company
no matter in what sense, and they should not interfere in the daily business
management of the company.
CHAPTER 8 BUSINESS MANAGEMENT MECHANISM
ARTICLE 53
The company shall have a business management mechanism under the board of
directors. The mechanism shall be responsible for the daily management of the
company.
ARTICLE 54
1. The mechanism has one general manager and several senior managing
personnel. The first general manager shall be recommended by Party A,
and appointed by the board of directors. The first chief financial
controller shall also be recommended by Party A, and appointed by the
board of directors. When their term of office is over, Party A shall
recommend new general manager and chief financial controller, and the
board of directors shall appoint them.
2. The general manager shall be responsible for the board of directors.
3. The members working in the mechanism shall all act according to the
general manager's instructions, and be responsible for the general
manager. Their work shall only be recognized when they work in line with
the general manager's instructions.
ARTICLE 55
1. The persons concerned from each party who nominated the general manager
and chief financial controller can dismiss and replace them after
approval by the board of directors provided that the normal operation of
the company is not affected.
2. When the person concerned requests to replace the general manager or
chief financial controller with new one in accordance with the previous
section, the board of directors should agree on the replacement unless
there are reasons to reject the replacement.
ARTICLE 56
1. The general manager is the leading member of the company in charge of
the daily business management. The general manager shall implement all
the resolutions adopted by the board of directors. The general manager
shall organize and lead the daily business operation of the company in
accordance with the relevant laws of China, Articles of Association and
resolutions passed by the board of directors.
2. The general manager shall perform his or her duties within the scope set
by the relevant laws of China, Articles of Association and resolutions
passed by the board of directors.
3. The general manager shall have the right to represent the company in
dealing with the external organizations within the scope set forth in
the previous section.
4. The general manager shall report to the board of directors at least once
every quarter on his or her work, which includes, but will not be
limited to the following:
a. Business: implementation progress of the business operating plan;
market information, implementation of the investment proposal.
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b. Financial affairs: budget fulfillment status, cost control; general
financial situations, fund management, assets management and debt
management; implementation of the various internal control systems
for financial affairs.
c. Audit: progress of internal auditing.
5. THE GENERAL MANAGER SHALL REPORT THE NEXT YEAR'S BUSINESS OPERATING PLAN
(DRAFT) TO THE BOARD OF DIRECTORS NO LATER THAN 10 DAYS BEFORE THE NEXT
FINANCIAL YEAR. THE PLAN SHALL INCLUDE:
a. Operating plan, which includes, but will not be limited to the
operating period, contracts with third parties and information about
the operating environment;
b. Financial plan formulated under the leadership of the chief
financial controller, which includes, but will not be limited to
anticipated revenue, capital expenditure, break down cost and other
variable cost;
c. Material purchase plan, which includes, but will not be limited to
the purchase expenses for equipment, stock for spare parts and
consumables (categorized by the capital items and expense items);
d. Any other items required by the board of directors.
6. The general manager shall make great efforts to collect all the money
that is owing, which includes, but will not be limited to the sum of
money due and payable under the contracts, insurance policy, letter of
guarantee and letter of indemnity; and shall pay all debts of the
company. If a sum of money to be collected by the company has not been
taken back forty five days after the due date, the general manager shall
submit a written report to the board of directors to explain the
situations.
7. If the general manager can not perform his or her duties because of his
or her own reasons, other senior managing person can temporally perform
the duties on behalf of the general manager after approved in writing by
the general manager or the board of director.
ARTICLE 57
The general manager may choose several senior managing personnel to lead the
different departments of the company and handle the matters instructed by the
general manager. They shall be responsible for the general manager. If a
department is to be set up, changed or abolished, the general manager shall
prepare a proposal, and the board of directors shall adopt a resolution on the
matter.
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ARTICLE 58
If there are facts to prove that any of the senior managing personnel are not
competent, or any of them are engaged in malpractice for self ends, have
neglected their duties in major issues, committed serious mistakes or have any
other misconduct, they shall be dismissed at any time. Dismissal of the general
manager or chief financial controller shall be decided by the board meeting, and
dismissal of other senior managing personnel shall be decided by the general
manager. When the general manager has decided to dismiss senior managing
personnel according to this article, he or she should report the matter to the
board of directors afterwards.
ARTICLE 59
Any of the senior managing personnel (including, but not be limited to the
general manager and chief financial controller) have incurred losses to the
company because of their mistakes, they should compensate the company for the
losses.
ARTICLE 60
The company has a chief financial controller. The remuneration and other
treatment of the chief financial controller shall be decided by the board of
director.
The chief financial controller shall assist the general manager in doing the
following work: to formulate the budget, cost control regulations and other
financial management regulations; to manage the financial department and guide
its work; to evaluate the business achievement of the various departments; to
check the business managing mechanism for properly handling the financial
affairs. If the financial affairs are not handled properly, the chief financial
controller shall ask the related persons or departments to correct it. To
correctly carry out the business accounting, to reflect accurately and supervise
the main economic business, to safeguard the legal rights and interests of the
persons concerned from each party; to deal with the tax departments and banks;
to report to the board of directors on the annual financial budget and final
accounts. As for anything other than the items listed above, the chief financial
controller should also put forward necessary suggestions, and provide assistance
and aid according to the request made by the general manager.
CHAPTER 9 SUPERVISORS
ARTICLE 61
There are two supervisors in the company, who shall be nominated by Party A and
Party B and elected by the board of shareholders. The term of office for the
supervisors is three years. When their term of office is over, they can be
reelected consecutively. The supervisors shall attend the board meeting as
non-voting members.
ARTICLE 62
The supervisors shall exercise the following functions and powers:
1. To check the financial situations of the company. They can invite the
Chinese certified accountants approved by the board of shareholders to
assist the checking. The cost incurred shall be borne by the company.
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2. To supervise the directors, the general manager and other senior
managing personnel to see whether they have violated the laws and
regulations or the Article of Association in performing their duties.
3. When any of the directors, general manager or other senior managing
personnel damage the interests of the company, the supervisors shall ask
them to correct it. If necessary they can invite the law office approved
by the board of shareholders on behalf of the company to make
representations to them or enter a lawsuit against them. The cost
incurred shall be borne by the company.
4. To propose to call interim meetings of the board of shareholders.
5. Other functions and powers to be exercised by the board of supervisors.
6. The supervisors shall attend the meetings of the board of directors as
non-voting members.
ARTICLE 63
The directors, general manager or chief financial controller shall not be
supervisors concurrently.
CHAPTER 10 LABOR MANAGEMENT
ARTICLE 64
1. Matters related to the labor management such as recruitment, training,
labor agreement, examination, promotion, rewards and punishments,
dismissal, salary, welfare treatment, labor protection, job safety and
sanitation, labor insurance of the employees and employees regulation
shall be dealt with in accordance with the regulations formulated by the
board of directors or regulations formulated by the general manager
under the relevant laws of China.
2. The provisions specified in this Chapter shall be also applicable to the
employees sent or dispatched by the persons concerned from each party.
The persons concerned from each party shall send or dispatch suitable
employees required by the company from their own units, the general
manager shall decide whether to accept them or not. The company shall
not undertake the obligations in any sense to accept the employees not
required by the company from each party.
ARTICLE 65
1. The company has the autonomy to recruit employees. Would-be employees
shall all be examined, and the company will enroll only those who are
outstanding. The company shall sign a separate labor agreement with the
employee, and then report the matter to the local labor administration
authority, so that they can enter the case in the records. The company
will set a six-month probation period for employees in the labor
agreement. If the employees are found not suitable for the work or their
abilities have not reached the expected level during the probation
period, the company will terminate the probation period in accordance
with the labor agreement, and dissolve the employment agreement.
2. Salaries of the employees shall be paid directly by the company.
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ARTICLE 66
The company shall have the right to punish those employees who have violated the
various rules and regulations or the labor agreement. The punishment will vary
with the various degrees of violations. Ways of the punishment includes warning,
fines, salary reduction, demotion, bandh, advise them to quit working and
dismissal. If an employee is advised to quit working or dismissed, the company
should report the matter to the local labor administration authority, so that
they can enter the case in the records.
CHAPTER 11 TAX, FINANCE AND AUDITING
ARTICLE 67
1. The company shall pay various kinds of taxes and additional fees in
accordance with the relevant laws of China.
2. The company shall deduct income tax from the income of the senior
managing personnel and employees in accordance with the relevant tax
laws of China.
ARTICLE 68
The company shall draw reserve funds, reward and welfare funds for employees and
enterprise development funds from the profits after tax in accordance with the
relevant laws of China. The drawing ratio each year shall be decided by the
board of shareholders in accordance with the business operating situations of
the company. However no funds shall be drawn if the previous year's loss has not
been made up.
ARTICLE 69
1. The company shall formulate and implement the financial and accounting
management regulations in accordance with the relevant laws of China and
the resolutions adopted by the board of directors.
2. All accounting of the company shall be handled in accordance with the
relevant laws of China. It is the company's principle that the
accounting formalities should be perfect and contents should be complete
and current.
ARTICLE 70
The accounting year of the company starts from Jan. 1 and ends at Dec. 31. But
the first accounting year of the company shall start from the establishment date
of the company and end at Dec. 31.
ARTICLE 71
1. The company shall formulate quarterly and annual loss and gain
statements, asset liability form and accounting report with cash flow
table, and deliver them to the persons concerned from each party. And at
the same time, deliver them to the related governmental administration
authority in accordance with the relevant laws of China.
2. The quarterly accounting report shall be delivered to the persons
concerned from each party before the 15th of the first month of the
following quarter. The annual accounting report shall be formulated
before March of the following year. Audited by the Chinese certified
accountants, the report shall be submitted to the board of directors for
approval. After approval, the report shall be delivered to the persons
concerned from each party.
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3. The company shall formulate such financial documents as monthly loss and
gain statements and asset liability form and then report them to the
related governmental administration authority.
ARTICLE 72
The persons concerned from each party shall have the right to check by
themselves or invite auditors to check the account books of the company or carry
out other necessary checks related to the financial and accounting matters at
any time. The cost incurred shall be borne by the party concerned. The company
and person concerned form the other party shall provide necessary convenience
for the checks.
ARTICLE 73
The company shall open accounts in RMB with the banks in accordance with the
relevant laws of China
CHAPTER 12 PROFITS SHARING AND LOSS REMEDY
ARTICLE 74
The company shall pay taxes in accordance with the relevant laws of China and
draw various funds from profits after tax in accordance with the regulations set
forth in the agreement, and then shall distribute the profits at the specified
ratio among the persons concerned from each party in accordance with the
resolution of the board of directors.
ARTICLE 75
It is not allowed to distribute the profits before the previous year's loss has
been made up. The undistributed profits of the previous year can be distributed
together with the following year's distribution of the profits.
ARTICLE 76
If there are still profits left after the loss has been made up, the company can
distribute profits once every year. Profits shall be distributed to the persons
concerned on the same day under any conditions.
CHAPTER 13 DISSOLUTION AND LIQUIDATION OF THE COMPANY
ARTICLE 77
1. When there are reasons to dissolve the company, the company shall put
forward a proposal to the board of shareholders to dissolve the company.
The board of shareholders, within fifty days after receiving the
proposal, shall decide to terminate the business and dissolve the
company, and at the same time shall apply to the original examination
and approval authority for the dissolution of the company. Under this
situation, the persons concerned from each party shall ask the
representatives recommended by each party to agree the dissolution of
the company at the meeting of the board of shareholders. The persons
concerned from each party shall also undertake the obligations to agree
on the dissolution resolution. However if the persons concerned from
each party have reached a written agreement on the dissolution mentioned
in Paragraph 2 below, the regulations specified in the written agreement
shall be observed.
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2. When there are reasons to dissolve the company, the persons concerned
from each party shall reach a written agreement to deal with the
following situation in which the company is not going to be dissolved
for a certain period of time even if the reasons to dissolve the company
become evident. Under such situation, the following regulations shall be
observed:
a. During the period specified in the written agreement, both parties
shall not use the dissolution reasons listed in the written
agreement to terminate the business operation of the company and
dissolve the company. However if the written agreement has other
regulations, the regulations specified in the agreement shall
prevail.
b. The written agreement shall be only applicable to the dissolution
reasons listed in the agreement. It is not applicable to those
dissolution reasons, which are happening or have already happened,
but not covered by the agreement.
3. If the dissolution application submitted by the company has not been
approved by the examination and approval authority within thirty days
after the application is submitted, the board of directors shall adopt
necessary measures including going through shutdown formalities.
4. If the company has been dissolved due to any reasons within five years
from the date of the establishment, the remaining assets shall be
distributed through friendly consultations based on fact. If the company
has been dissolved due to any reasons five years after the date of the
establishment, the remaining assets (including all the investments
beyond the registered capital) shall be distributed in accordance with
the ratio of the share ownership.
CHAPTER 14 BREACH
ARTICLE 78
When either party fails to undertake the substantial obligations specified in
this agreement or supplementary agreements to this agreement, or has violated
the relevant laws of China and regulations set forth in this agreement or
Articles of Association, or there are false or misunderstood promises in either
party's statement or guarantee required by this agreement, the party is regarded
as breach of the agreement.
ARTICLE 79
If one party has breached the agreement and caused losses to the company, the
party concerned shall compensate the company for the losses. The losses shall
include the cost paid by the company to handle the breach (including, but not be
limited to the travelling expenses, communication fees, lawyer fees and
appraisal fees, and etc.)
ARTICLE 80
If one party has breached the agreement and caused losses to the other party,
the non-defaulting party can ask the defaulting party to compensate for the
losses. The losses shall include the cost paid by the non-defaulting party to
handle the breach (including, but not be limited to the travelling expenses,
communication fees, lawyer fees and appraisal fees, and etc.)
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CHAPTER 15 AMENDMENT, ALTERATION AND DISSOLUTION
OF THE AGREEMENT
ARTICLE 81
If this agreement and its appendixes are to be amended or altered, the parties
to this agreement shall have consultations and reach an agreement with regard to
the amendment or alteration. Then the agreement shall be signed by the
representatives authorized by both parties.
ARTICLE 82
Should one of the parties be prevented from executing this agreement by force
majeure (such as earthquake, typhoon, flood, fire, war and other unforeseen
events whose happening and consequences are inevitable or unavoidable), the
prevented party shall notify the other party immediately, and within fifteen
days thereafter provide detailed information about the event and a written
document to explain to what extent the force majeure event has affected the
execution of this agreement along with a valid certificate to testify the event.
The valid certificate shall be issued by an appropriate organization (a third
party) in the locality where the force majeure took place. The prevented party
shall not compensate for the economic losses caused by the force majeure.
Both parties shall, through consultations, decide whether to delay the execution
of the agreement, exempt from the performance of the obligations, or alter the
agreement based on the effects of the force majeure event on the performance of
the agreement. Then both parties shall implement the decision in accordance with
the Chinese laws and the government requirements.
CHAPTER 16 SETTLEMENT OF DISPUTES
ARTICLE 83
Any disputes arising from execution of, or in connection with the agreement
shall be settled through friendly consultations.
ARTICLE 84
In case no settlement can be reached through friendly consultations thirty days
after commencement of the consultations, either party may lodge a lawsuit before
the people's court.
ARTICLE 85
During the consultation and litigation period, the agreement shall be executed
continuously by both parties except for matters in dispute.
CHAPTER 17 STATEMENT AND GUARANTEE
OF THE PERSONS CONCERNED
ARTICLE 86
At the time of signing this agreement, the persons concerned from both parties
have made the following statement and guarantee:
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Before signing this agreement, the information provided by us is the newest,
complete and accurate.
CHAPTER 18 SUPPLEMENTARY ARTICLES
ARTICLE 87
Without the permission from the other party, either party shall not use at its
own decision or transfer the technology, the technical know-how and other
secrets acquired from the other party at time of signing and performing this
agreement to a third party. This obligation under this article shall still be
effective even after the termination of the agreement.
ARTICLE 88
1. Where, in accordance with the agreement, a notice in writing is
required, it shall be sent by such reliable delivery methods as
postage paid registered air mail or air express delivery to the
address specified in the agreement or such other address as may
from time to time be notified by either Party to the other .
However under special conditions, such notice can be sent by
telegram, telex or facsimile. The notice concerning the rights and
obligations sent by this way shall be confirmed by a written
document immediately afterwards.
2. Unless otherwise specified, the effective date of the notice sent
by air registered mail or air express delivery shall be five days
after the date of postage registration. The notice sent by
telegram, telex or fax shall be regarded as that it has reached the
other party on the date of sending unless otherwise specified (but
the effective date of the notice concerning the rights and
obligations sent by this way is subject to the arriving date of the
written document).
ARTICLE 89
The agreement shall become effective after it is signed and sealed by both
parties.
ARTICLE 90
Matters not covered by this agreement shall be discussed and decided by the two
parties in accordance with the relevant laws and regulations of the People's
Republic of China. The decision on the matters concerned shall be in the written
form.
ARTICLE 91
The Articles of Association and supplementary agreements signed by both parties
are appendixes to this agreement, and they are an integral part of this
agreement.
ARTICLE 92
This agreement is made in four identical copies with each party holding two
copies. This agreement is signed in China by both parties on July 22, 2002.
Party A: The National Center for Audio and Visual Education
Date of signature:
Party B:
Date of signature:
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